Compare Versions


PDF |Add To My Favorites | print page

AB-1095 Junk dealers and recyclers: nonferrous materials.(2013-2014)



Current Version: 03/14/13 - Amended Assembly         Compare Versions information image


AB1095:v98#DOCUMENT

Amended  IN  Assembly  March 14, 2013

CALIFORNIA LEGISLATURE— 2013–2014 REGULAR SESSION

Assembly Bill
No. 1095


Introduced by Assembly Member Nestande

February 22, 2013


An act to amend Section 3294 of the Civil Code, relating to civil actions. An act to amend Section 21608.5 of the Business and Professions Code, relating to business.


LEGISLATIVE COUNSEL'S DIGEST


AB 1095, as amended, Nestande. Civil actions: damages. Junk dealers and recyclers: nonferrous materials.
Existing law requires junk dealers and recyclers, as defined, to maintain written records of all sales and purchases made in the course of their business, and makes a violation of the recordkeeping requirements a misdemeanor. Existing law prohibits a junk dealer or recycler from providing payment for nonferrous material, as defined, unless the payment is made by cash or check, the check is mailed or the cash or check is provided no earlier than 3 days after the date of sale, and the dealer or recycler obtains a photograph or video of the seller and certain other identifying information, as specified, which information is to be retained by the dealer or recycler, as part of the written record of purchases, for a specified period of time. Existing law exempts from the payment by cash or check requirement those sellers of junk or recycling materials who conduct 5 or more separate transactions per month with the junk dealer or recycler, as specified.
This bill would require a junk dealer or recycler to provide payment by check only, mailed or provided to the seller of the materials no earlier than 30 days after the date of sale, and would prohibit the junk dealer or recycler from recycling, selling, or disposing of the materials during that time period. The bill would delete the exemption from the check-only payment requirement of those sellers of junk or recycling materials who conduct 5 or more separate transactions per month with the junk dealer or recycler. The bill would exempt from the check-only payment requirement, and permit payment by check or cash on or after the 3rd business day from the date of sale, the sale of nonferrous materials under specified circumstances, including if the nonferrous materials were marked with an indicia of ownership, as defined. Under these circumstances, the bill would require the junk dealer or recycler to obtain specified documentation from the seller.
The bill would also exempt from the check-only payment requirement, and permit payment by check or cash on or after the 3rd business day from the date of sale, the sale of nonferrous materials that were removed from the home of the seller during construction, if the junk dealer or recycler obtained specified documentation from the seller, including a letter from a licensed contractor stating that the materials were removed from the home of the seller during construction. The bill would provide that a licensed contractor who willfully or knowingly makes a false or fictitious statement in that letter is guilty of a crime. The bill would also require the junk dealer or regular to retain the documentation obtained pursuant to these provisions as part of the written record of purchases.
Because a violation of the recordkeeping requirement would be a crime and because this bill creates a new crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law authorizes the plaintiff, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, to recover damages for the sake of example and by way of punishing the defendant in addition to the actual damages.

This bill would make technical, nonsubstantive changes to this provision.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NOYES   Local Program: NOYES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 21608.5 of the Business and Professions Code is amended to read:

21608.5.
 (a) A junk dealer or recycler in this state shall not provide payment for nonferrous material unless, in addition to meeting the written record requirements of Sections 21605 and 21606, all of the following requirements are met:
(1) The payment for the material is made by cash or check. The check, which may be mailed to the seller at the address provided pursuant to paragraph (3) or the cash or check may be collected by the seller from the junk dealer or recycler on or after the third business 30th day after the date of sale, during which period the junk dealer or recycler may not discard, disassemble, recycle, sell, dispose of, or otherwise remove the items purchased from the junk dealer’s or recycler’s property.
(2) At the time of sale, the junk dealer or recycler obtains a clear photograph or video of the seller.
(3) (A) Except as provided in subparagraph (B), the junk dealer or recycler obtains a copy of the valid driver’s license of the seller containing a photograph and an address of the seller, a copy of a state or federal government-issued identification card containing a photograph and an address of the seller, a passport from any other country in addition to another item of identification bearing an address of the seller, or a Matricula Consular in addition to another item of identification bearing an address of the seller.
(B) If the seller prefers to have the check for the material mailed to an alternative address, other than a post office box, the junk dealer or recycler shall obtain a copy of a driver’s license or identification card described in subparagraph (A), and a gas or electric utility bill addressed to the seller at that alternative address with a payment due date no more than two months prior to the date of sale. For purposes of this paragraph, “alternative address” means an address that is different from the address appearing on the seller’s driver’s license or identification card.
(4) The junk dealer or recycler obtains a clear photograph or video of the nonferrous material being purchased.
(5) The junk dealer or recycler shall preserve the information obtained pursuant to this subdivision for a period of two years after the date of sale.
(6) (A) The junk dealer or recycler obtains a thumbprint of the seller, as prescribed by the Department of Justice. The junk dealer or recycler shall keep this thumbprint with the information obtained under this subdivision and shall preserve the thumbprint in either hardcopy or electronic format for a period of two years after the date of sale.
(B) Inspection or seizure of the thumbprint shall only be performed by a peace officer acting within the scope of his or her authority in response to a criminal search warrant signed by a magistrate and served on the junk dealer or recycler by the peace officer. Probable cause for the issuance of that warrant must be based upon a theft specifically involving the transaction for which the thumbprint was given.

(b)Paragraph (1) of subdivision (a) shall not apply if, during any three-month period commencing on or after the effective date of this section, the junk dealer or recycler completes five or more separate transactions per month, on five or more separate days per month, with the seller and, in order for paragraph (1) of subdivision (a) to continue to be inapplicable, the seller must continue to complete five or more separate transactions per month with the junk dealer or recycler.

(c)

(b) This section shall not apply if, on the date of sale, the junk dealer or recycler has on file or receives all of the following information:
(1) The name, physical business address, and business telephone number of the seller’s business.
(2) The business license number or tax identification number of the seller’s business.
(3) A copy of the valid driver’s license of the person delivering the nonferrous material on behalf of the seller to the junk dealer or the recycler.

(d)

(c) (1) This section shall not apply to the purchase of nonferrous material having a value of not more than twenty dollars ($20) in a single transaction, when the majority of the transaction is for the redemption of beverage containers under the California Beverage Container Recycling and Litter Reduction Act, as set forth in Division 12.1 (commencing with Section 14500) of the Public Resources Code.
(2) Materials made of copper or copper alloys shall not be purchased under this subdivision.

(e)

(d) This section shall not apply to coin dealers or to automobile dismantlers, as defined in Section 220 of the Vehicle Code.
(e) Paragraph (1) of subdivision (a) shall not apply, and payment for the nonferrous materials may be made by cash, or check mailed to the seller at the address provided pursuant to paragraph (3) of subdivision (a), or by cash or check collected by the seller from the junk dealer or recycler on or after the third business day after the date of sale, if one of the following conditions are met:
(1) If the materials are marked with an indicia of ownership, the junk dealer or recycler obtains a proof of ownership record, including, but not limited to, a receipt from the indicated owner, or a bill of lading, from the person selling or delivering the materials that shows that person has lawful possession or ownership of the materials. Copies of these documents shall be maintained by the junk dealer or recycler as part of the written record of the transaction.
(2) If the materials are not marked with an indicia of ownership, the junk dealer or recycler obtains a proof of purchase record identifying the materials brought in for sale or recycling, including, but not limited to, a retail store receipt identifying the materials by part number if that part number is indicated on the materials. Copies of these documents shall be maintained by the junk dealer or recycler as part of the written record of the transaction.
(3) If the materials are recycled after being removed from the home of the seller, the junk dealer or recycler obtains the following documentation, and maintains that documentation as part of the written record of the transaction:
(A) A letter from a licensed contractor indicating the address of the seller and stating that the materials were removed from the home of the seller during the course of construction. A licensed contractor who willfully or knowingly makes a false or fictitious statement under this subparagraph is guilty of a misdemeanor punishable pursuant to subdivision (b) of Section 21608.
(B) A copy of the contractor’s license.
(C) A utility bill addressed to the seller with a payment due date no more than two months prior to the date of sale, indicating the seller’s name and address as it appears on the letter pursuant to subparagraph (A) and the seller’s name as it appears on the identification documentation provided pursuant to paragraph (3) of subdivision (a).
(f) For the purposes of this section, the following terms have the following meanings:
(1) “Indicia of ownership” means words, symbols, or registered trademarks printed, stamped, etched, attached, or otherwise displayed on the exterior surface of the materials that reasonably identify the owner.

(f)For the purposes of this section, “nonferrous

(2) “Nonferrous material” means copper, copper alloys, stainless steel, or aluminum, but does not include beverage containers, as defined in Section 14505 of the Public Resources Code, that are subject to a redemption payment pursuant to Section 14560 of the Public Resources Code.
(g) This section is intended to occupy the entire field of law related to junk dealer or recycler transactions involving nonferrous material. However, a city or county ordinance, or a city and county ordinance, relating to the subject matter of this section is not in conflict with this section if the ordinance is passed by a two-thirds vote and it can be demonstrated by clear and convincing evidence that the ordinance is both necessary and addresses a unique problem within and specific to the jurisdiction of the ordinance that cannot effectively be addressed under this section.

SEC. 2.

  No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
SECTION 1.Section 3294 of the Civil Code is amended to read:
3294.

(a)In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.

(b)An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.

(c)As used in this section, the following definitions shall apply:

(1)“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the safety or rights of others.

(2)“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3)“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or a legal right or otherwise causing injury.

(d)Damages may be recovered pursuant to this section in an action pursuant to Chapter 4 (commencing with Section 377.10) of Title 3 of Part 2 of the Code of Civil Procedure based upon a death which resulted from a homicide for which the defendant has been convicted of a felony, whether or not the decedent died instantly or survived the fatal injury for some period of time. The procedures for joinder and consolidation contained in Section 377.62 of the Code of Civil Procedure shall apply to prevent multiple recoveries of punitive or exemplary damages based upon the same wrongful act.

(e)The amendments to this section made by Chapter 1498 of the Statutes of 1987 apply to all actions in which the initial trial has not commenced prior to January 1, 1988.